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The full text of §1915A reads:

(a) Screening.--The court shall review, before docketing,

if feasible or, in any event, as soon as practicable after

docketing, a complaint in a civil action in which a prisoner

seeks redress from a governmental entity or officer or

employee of a governmental entity.

(b) Grounds for Dismissal.--On review the court shall

identify cognizable claims or dismiss the complaint, or any

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Henry N. Harper,

Plaintiff

 v.

Guernsey County Sheriff's

Department, et al.,

Defendants

:

:

:

:

:

Civil Action 2:11-cv-00533

Judge Watson

Magistrate Judge Abel

INITIAL SCREENING

REPORT AND RECOMMENDATION

Plaintiff Henry N. Harper , an inmate at Chillicothe Correctional Institution,

brings this prisoner civil rights action under 42 U.S.C. §1983. This matter is before the

Magistrate Judge for a Report and Recommendation on initial screening of the

complaint pursuant to 28 U.S.C. §1915A(a) and (b)1

 and 42 U.S.C. §1997e(c) to identify

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portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim

upon which relief may be granted; or

(2) seeks monetary relief from a defendant who

is immune from such relief.

(c) Definition.--As used in this section, the term

"prisoner" means any person incarcerated or detained in any

facility who is accused of, convicted of, sentence for, or

adjudicated delinquent for, violations of criminal law or terms

and conditions of parole, probation, pretrial release, or

diversionary program.

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cognizable claims, and to dismiss the complaint, or any portion of it, which is frivolous,

malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. The Magistrate Judge finds

that the complaint fails to state a claim upon which relief may be granted and therefore

RECOMMENDS dismissal of the complaint.

The complaint alleges on May 8, 2010, shortly after midnight, the Guernsey

County Sheriff's Department came to plaintiff's house. Plaintiff was not at his house at

that time. Plaintiff's minor son told deputies Dustin Best, Matt Scurlock, and Chad

Kerns to leave. The deputies were still at plaintiff's home when Tina Harper arrived at

the house. The deputies threatened to send her to jail, and she told them several stories

in an effort to get them to leave. The deputies searched the house without her

permission and located a box of 9mm shells. The complaint alleges that the deputies

illegally searched his house and seized the 9mm shells. The complaint also alleges that

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detective Sam Williams committed perjury by testifying that he had a copy of plaintiff's

computerized criminal history. The complaint alleges that plaintiff has been required to

undergo F.B.I. checks for employment purposes.

When considering whether a complaint fails to state a claim under Rule 12(b)(6),

Federal Rules of Civil Procedure, a court must construe the complaint in the light most

favorable to the plaintiff and accept all well-pleaded material allegations in the

complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Brown v. Bargery, 207 F.3d

863, 866 (6th Cir. 2000); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th

Cir. 1983). Rule 8(a), Federal Rules of Civil Procedure provides for notice pleading. 

Conley v. Gibson, 355 U.S. 41, 47 (1957). A civil "complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355

U.S. at 45-46; Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). Moreover, pro se

prisoner complaints must be liberally construed. Hughes v. Rowe, 449 U.S. 5, 9-10 (1980).

Under Heck v. Humphrey, 512 U.S. 477 (1994), Harper's claims for damages

pursuant to 42 U.S.C. § 1983 are barred. Under Heck and its progeny, a state prisoner

cannot state a cognizable claim under sections 1983 “if a ruling on his claim would

necessarily imply the invalidity of his conviction and confinement until such time that

the conviction is reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal, or called into question by a federal court's issuance of a writ

of habeas corpus.” Lanier v. Bryant, 332 F.3d 999, 1005-06 (6th Cir. 2003) (citing Heck, 512

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U.S. at 486-87). Harper seeks monetary damages arising out of his conviction and claims

no injury distinct from his conviction. Since he essentially attacks the lawfulness of his

conviction without first having that conviction set aside, his tendered complaint failed

to state a claim under Heck.

Accordingly, it is hereby RECOMMENDED that the complaint be DISMISSED

for failure to state a claim under 42 U.S.C. §1983.

IT IS FURTHER ORDERED that the United States Marshal serve upon each

defendant named in part III, B and C of the form civil rights complaint a summons, a

copy of the complaint, and a copy of this Order. Defendants are not required to answer

the complaint unless later ordered to do so by the Court.

The Clerk of Court is DIRECTED to mail a copy of this Order to the Attorney

General of Ohio, Corrections Litigation Section, 150 East Gay St., 16th Floor, Columbus,

OH 43215.

If any party objects to this Report and Recommendation, that party may, within

ten (10) days, file and serve on all parties a motion for reconsideration by the Court,

specifically designating this Report and Recommendation, and the part thereof in

question, as well as the basis for objection thereto. See 28 U.S.C. §636(b)(1)(B); Fed. R.

Civ. P. 72(b).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

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Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

See also Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel 

United States Magistrate Judge

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